PREFACE. THE writer must apologise to all purchasers of his first volume for his delay in completing the second. He confesses that, when the first volume appeared, he had under-estimated the difficulties attendant on finishing his work, and had formed too sanguine an expectation as to the time when the second volume. would be published. A temporary publication, containing about half of the present volume, was issued in November, 1904, and the writer then explained the circumstances that prevented his earlier completion of the entire work. He must acknowledge that on that occasion he again made too hopeful an estimate of the time which would be required to finish the second volume. For this he must express his sincere regret. But he may perhaps be allowed to say that he afterwards found that, in order to carry out his design of a complete treatise on the law of Vendor and Purchaser, he was obliged to write at far greater length than he had expected. In particular, he thought it necessary to add an entire chapter, which he had not previously contemplated-that on the Discharge of the Contract. The order of the subjects proposed for consideration in Volume II. has been changed since the publication of Volume I. The second volume begins with the discussion of the grounds for avoiding the contract, and then treats successively of Mistake, Fraud, Misrepresentation, Duress and Undue Influence, Illegality in the Contract, and Personal Incapacity. Then come chapters on Incapacity in equity arising from the relations between the parties (such as the disability of a trustee or an agent for sale); on the Discharge of the Contract; and on the Remedies for breach of the contract, including the consideration of the remedies available in any respect after completion of the purchase. And the book ends with a chapter on the Sale of registered land. The writer has pursued the plan adopted in the first volume of not avoiding the discussion of difficult or doubtful points. These have proved to be so numerous that his adherence to this design has certainly contributed to retard the completion of his treatise but for this he hopes to meet with the reader's indulgence. He may mention that at the very outset he has found himself beset with many doubts and difficulties as to the true theory of English law with respect to mistake as a ground of avoiding a contract. The view he has put forward is warranted, he believes, by the English authorities; and it is supported by the statements made in the late Mr. Benjamin's classical treatise on Sale. On the other hand, it seems to conflict with the opinion maintained by Mr. Justice O. W. Holmes of the Supreme Court of the United States, who is perhaps the most brilliant and original of all living writers on the Common Law, and with that adopted by Professor Holland. And it is with extreme diffidence that the writer ventures to criticise their conclusions (a). The question, how far mistake is available, either as a ground of avoiding a contract for the sale of land at law, or of resisting its specific performance in equity, was raised in an acute form in the recent case of Van Praagh v. Everidge (b), which unfortunately went off in the Court of Appeal on the point of non-compliance with the 4th section of the Statute of Frauds. The writer has fully discussed this case in both of these aspects (c). Another difficult point, relating partly to the law of mistake and partly to that of misrepresentation, is the effect upon the contract at law and in equity of non-disclosure by the vendor of a latent defect of quality, of which he is aware; and the authorities on this point have been carefully considered (d). A full examination has been made of the questions, whether one may well claim (a) See pp. 667, 668, and note (i). (b) 1902, 2 Ch. 266; 1903, 1 Ch. 434. |